said tracts Nos. 1 to 6, which were bound by it; that the judgment of Mrs. Mary Herrold was but evidence of the amount due thereon; that as to any other property of Wm. G. Herrold, its lien only dated from the date of the judgment, but as to the proceeds of tracts Nos. 1 to 6, it was a prior lien and should be so paid, subject, however, to the decision of the Court upon the issue awarded as aforesaid to determine the validity of her lien.

Exceptions were filed to this report by Michael B. Holman, the mortgage creditor and appellant. Meanwhile the issue awarded to test the validity of the claim of Mrs. Mary Herrold, was settled by the verdict of two successive juries in her favor. Then on motion of the said Holman, the Court recommitted the report to the Auditor in order to enable him to ascertain and report whether the lien of Mrs. Mary Herrold, a recognizance, was indexed in the judgment index book in Union County where it was originally entered, and to make distribution accordingly.

Mrs. Mary Herrold filed exceptions to the report which were sustained by the Court, BUCHER, P. J., delivering the opinion, in which he held that Orphans' Court recognizances taken in proceedings in partition are in the line of title, and must be looked for there by judgment-creditors and purchasers, and as to them the Act of 1856 was inapplicable. That therefore this recognizance was a lien against the Holman mortgage, and had not lost its priority. A decree was accordingly entered that the exceptions to the second report of the Auditor were sustained, that the fund should be distributed in accordance with the first report of the Auditor. The exceptions to that report, and to the special return of the administrator as to the sale of tract No. 1, were overruled. Whereupon the said Michael B. Holman took this appeal, assigning for error the decree of the Court.

A. C. Simpson and B. F. Junkin, for the appellant.

The title of the Act of 1856 is "An Act for the greater certainty of title and more secure enjoyment of real estate." Its purpose cannot be mistaken. "No judgment or recognizance" means not any judgment or recognizance.

The Act cannot apply to recognizances in the Common Pleas, for they were already provided for by the Act of April 15, 1834, § 74 (P. L. 551).

As to this the Auditor reported that the proceedings in partition in 1851 had been duly recorded and indexed in the Orphans' Court docket of Union County. That there was no such book as a judgment index book in the office of the clerk of the said Court, so there could be no entry therein. That the record did not show that the recognizance was ever certified from Union County to Snyder County prior to 1879, nor was it ever entered on the judgment index or lien docket of Snyder County as a re-a purchaser or mortgagee is not to be driven becognizance, but only as a judgment on the recognizance, and this only on October 31, 1879. That the 3d section of the Act of April 22, 1856 (P. L. 532, Purd. Dig. 824, pl. 23) provides as follows:

"The lien of no judgment, recognizance, execution levied on real estate in the same or another county, or of writs of scire facias to revive or have execution of judg. ments, shall commence or be continued, as against any purchaser or mortgagee, unless the same be indexed in the county where the real estate is situated, in a book to be called the judgment index; and it shall be the duty of the prothonotary or clerk forthwith to index the same, according to priority of date, and the plaintiff shall furnish the proper information to enable him to perform said duty."

That the Auditor was of the opinion that this Act applies to recognizances in the Orphans' Court in partition. That this present recognizance was not indexed in the county where the real estate was situated in a book called the judgment index, as required by the Act. That therefore it had lost its priority, and was not a lien against Michael B. Holman, a mortgage creditor.

[TRUNKEY, J. Is not this recognizance a lien and in the chain of title?]

Yes, but after the passage of the Act of 1856,

yond the county in which the lands lie to search for liens. For defects in title he is still bound to look everywhere-caveat emptor applies as to title, but not as to lien.

[PAXSON, J. Are Orphans' Court recognizances recorded in the Common Pleas?]

No, but this recognizance was never recorded in the Orphans' Court of Snyder County where the real estate is situated, which is plainly required by the Act.

That this 3d section was intended to embrace a recognizance in the Orphans' Court is mani. fest from the fact that the failure to index it in the county where the real estate lies, does not defeat its lien as to judgment-creditors, but as to purchasers and mortgagees only, thus clearly indicating that the lien in the view of the lawmaker was of a kind not then requiring to be indexed, and in no other form than by recognizance in the Orphans' Court did such a lien exist.

Price on Limitations and Liens, ch. xxv. pp. 251, 252.

Chas. Hower and A. W. Potter, for appel

lees.

The Act has no application to Orphans' Court recognizances, for all the liens mentioned are entered in the Common Pleas. There is no provision for certifying a recognizance from the Orphans' Court to the Court of Common Pleas. This would be necessary in order to enter it on the judgment index docket.

The 3d section of this Act of 1856 was little as required. Hence it is that we are now asked more than declaratory of the existing law. As to decide that ever since the Act of 1856 went the Act of April 15, 1834 (P. L. 551), had pro- into effect in October of that year, recognizances vided for the recognizances in the Common given in the Orphans' Courts of this CommonPleas, so had the Act of March 29, 1827, §3 (P. wealth on proceedings in partition for the payL. 155), provided for the other liens therein ment of the valuation money of real estate acmentioned. cepted in such proceedings, have not been and are not liens upon the land accepted, as against purchasers and mortgagees, unless indexed upon the judgment index or some index kept in the Orphans' Court office for that purpose. It is almost thirty years since this Act was passed. It is admitted by the learned counsel for the appellant that the present question has never before been raised. It is certain that to hold such a doctrine now would disturb, if not destroy, a vast number of titles, would impair the value of liens of this character to an unknown extent, and would practically revolutionize the law upon this subject as commonly understood by the Bench and the Bar throughout the Commonwealth. Nothing short of extreme necessity would justify a court of last resort in taking such a step. Fortunately, no such necessity exists in this case.

The lien of a recognizance taken in proceedings in partition in the Orphans' Court continues until it is paid.

Kean v. Franklin, 5 S. & R. 155.
Walton v. Willis, 1 Dallas, 265.
Hartman's Appeal, 9 Harris, 491.
Darlington's Appropriation, 1 Id. 432.
Ankeny v. Penrose, 6 Id. 193.

It is in the line of title, and must there be
looked for by judgment-creditors and purchasers.
Riddle & Pennock's Appeal, 1 Wright, 181.
Bailey v. Comm., 5 Wright, 478.
Wetherill v. Warner, 6 Phila. Rep. 182.
De Haven v. Bartholomew, 7 Smith, 126.
Bank v. Cockley, 2 Pearson, 124.
McCandless's Appeal, 2 Out. 494.

The literal terms of the section in question prohibit lien as against purchasers and mortgagees to four species of judicial acts or proceedings, viz: (1) judgments; (2) recognizances; (3) executions levied on real estate, and (4) writs of scire facias to revive or have execution of judgments, unless the same are indexed as prescribed.

October 6, 1884. THE COURT. Independently of the third section of the Act of April 22, 1856 (P. L. 532), it is not pretended that the recognizance given by an acceptor of land on proceedings in partition in the Orphans' Court All of these acts and proceedings are within for payment of the shares of the widow and the function and indeed peculiar to the Court of other heirs, is not a lien unless indexed in a Common Pleas, and all save one are exclusively docket or index kept for that purpose. The cognizable and possible in that Court. The whole contention in this case for the necessity of recognizance is known in the Orphans' Court, as such an index is founded exclusively upon the it is in the criminal courts, but the others are section of the Act in question. Its language is not. But recognizance is also a form of obligaas follows: "That the lien of no judgment, re- tion known to the practice of the Common cognizance, or execution levied on real estate in the same or another county, or of writs of scire facias to revive or have execution of judgments, shall commence or be continued as against any purchaser or mortgagee, unless the same be indexed in the county where the real estate is situated, in a book to be called the judgment index; and it shall be the duty of the prothonotary or clerk forthwith to index the same according to priority of date, and the plaintiff shall furnish the proper information to enable him to perform said duty."

Pleas, and, therefore, where it is coupled with other acts and proceedings of that Court, the whole being subjected to a regulation common to all, it is not necessary to infer that it is used in any other than its natural associated sense.

The plain and apparent reading of the section is to prohibit lien to certain judgments and proceedings in the Common Pleas, except upon certain conditions which also are peculiar to that Court. For there is no such book either created by law or established or maintained by practice, as the "judgment index" in any other Court than the Common Pleas, and it is in a book of that name that the acts and proceedings men

It will be observed that this is not a Statute of Limitations regulating the time of the continuance of existing liens, and the method of reviving tioned in the section are to be indexed. them, but a prohibitory statute denying any effect as a lien to the various judgments and proceedings mentioned, unless the same are indexed

It is not known to any member of this Court that there is a book called "judgment index" kept in any Orphans' Court office in the State.

This Act of 1856 contains no provision specifi- | 494). Other and obvious considerations might cally directing such a book to be opened or kept be submitted in support of the conclusion we in the Orphans' Court, and we cannot declare have reached, but it is not necessary to repeat that a duty to keep such a book in that Court them. We are of opinion that the case was corarises under the third section except by inferring rectly ruled in the Court below; and therefore it. But there is no ground for such an inference the decree is affirmed, and appeal dismissed at unless we also infer that the word "recogni- the cost of the appellant. nizance," used in the section, necessarily includes recognizance in the Orphans' Court. We do not feel able or willing to draw either of these inferences, as all the words of the section, including this one, can be satisfied without doing so.

If it be said that the Prothonotary of the Common Pleas must index the Orphans' Court recognizances in the judgment index kept in his office, it is enough to reply that the Act neither gives him the necessary authority to do so, nor directs it as one of his duties. We cannot resist the conclusion that if the Legislature had intended to make so great and radical a change in the law affecting the lien of Orphans' Court recognizances, as is contended for by the appellant, they would have said so in plain and unmistakable language, and made adequate provision for carrying into effect the consequent changes in the existing practice. For us to do so would be scarcely short of judicial legislation.

Opinion by GREEN, J.

C. K. Z.

June 4, 1884.

Partnership-Joint stock association-Private banking business-Directors-When not liable to stockholders-Articles of associationQualification of, by parol evidence.

Directors of an unincorporated joint stock association, or partnership, are not liable to the stockholders for losses caused by their mistakes of judgment honestly made, have exercised their best skill and discretion for the genewhere they acted without compensation and appear to ral benefit of the concern, without seeking to benefit themselves to the injury of their copartners.

As between the copartners themselves, parol evidence is admissible to qualify the terms of the articles of association.

Appeal from a decree of the Common Pleas of Cumberland County.

plaintiffs, and H. Manning, M. B. Boyd, administrator of W. Gracey, deceased, and others, late directors of said bank, defendants, praying that certain losses incurred in the business of the bank, caused as alleged by reason of the directors having acted in violation of the articles of association, be ascertained, and the defendants be required to pay such amounts as they should respectively be found liable for.

Apart from the considerations thus far presented it is manifest that the purpose of the third section of the Act of 1856 was to provide a system of liens which would give notice to subsequent purchasers and mortgagees. But, in cases of this kind, such notice is amply furnished by Bill in equity, between Ephraim Addams, the ordinary investigation of title which all such William McLaughlin, executor of Thomas persons are bound to make in any event. Or- McLaughlin, deceased, and others, stockholders phans' Court recognizances, such as this, are of "The People's Union Bank of Newville," directly in the line of the title. They are a part of the very proceeding by means of which title is derived, and cannot be overlooked if the title is really examined. We have said, on three distinct occasions, that there is a radical difference between these liens and those that appear on the record of the Common Pleas, that the former are in the line of the title, while the latter are outside. Thus in Riddle & Pennock's Appeal (1 Wright, on p. 281), we said: "The argument is an attempt to apply to liens for owelty of partition in the Orphans' Court the principles which govern the liens of judgments in the Courts of Common Pleas. They are, however, entirely unlike. The one is in the line of the title, the other is outside. An Act of Assembly has declared that a judgment docket shall be kept in the Common Pleas. This is for the information of subsequent lien creditors and purchasers. No such requirement exists respecting liens in the Orphans' Court." The same sentiment was repeated in Bailey v. Commonwealth (5 Wright, on p. 478), and McCandless's Appeal (2 Out., on p.

General and special answers were filed by the defendants, and the cause was referred to John R. Miller and C. P. Humrich, Esqs., as Examiners and Masters, before whom voluminous testimony was taken.

The Masters in their report found the material facts to be, inter alia, as follows:—

On February 25, 1870, over sixty individuals entered into articles of association to carry on the business of banking in Newville, Cumberland County, Pa., under the name of "The People's Union Bank of Newville." The capital was fixed at $50,000. The articles prescribed that the business should be managed and con

trolled by a board of nine directors to be elected | taining the 5 per cent. attorney fee collection annually. The eighth article provided as fol- clause from liability, on the ground that it delows:

stroyed its negotiability. This decision in a "That the total liabilities to this association of any perbreath wiped out the security furnished by the son or of any company, corporation, or firm, for money names of the original indorsers on the Ahl and borrowed, including in the liabilities of a company or Woodburn accommodation paper; and the latfirm the liabilities of the several members thereof, shall at ter especially, who are admitted to have been no time exceed one-tenth part of the amount of capital good responsible men, taking advantage of this stock of said association, provided that the discount of decision, refused to renew the notes indorsed by them.

bona fide bills of exchange drawn against actually existing values, and the discount of commercial or business paper actually owned by the person or persons, corporation or firm, negotiating the same, shall not be considered as money borrowed."

. . In the conduct of this business, if mistakes were made by the directors, as they undoubtedly were, the Masters are satisfied from all the evidence, that they were mistakes of The business of the bank was successfully con- judgment, honestly made in the conduct of a ducted for a number of years by various directors business requiring unusual ability. That they including the defendants, but finally resulted in gave to this business their best skill, care, and the loss of all the capital. The association ability, and what was done, whether right or passed into the hands of trustees, and some of wrong, prudent or imprudent, was fairly within the stockholders, complainants, contributed to the scope of the powers committed to them as the payment of the claims of creditors. The directors of the People's Union Bank of NewMasters found that there were no creditors of ville." The complainants requested the Masters the association other than stockholders. to strike out the testimony given by defendants, on the ground that they were incompetent to testify in the cause. Refused.

The bill charged that said loss was occasioned by the acts of the defendants as directors in direct opposition to the terms of the articles of association, particularly in that they loaned to and discounted for the accommodation of Ahl and Woodburn, two customers of the bank, sums largely in excess of the limit provided by the 8th article, supra.

The conclusions of the Masters upon the whole case were as follows:

"That from all the evidence submitted, the opinion cannot be entertained nor the conclusion drawn, that the directors, who were men of standing and character, and served without comThe defendants averred, and the Masters so pensation, and who were guilty of no fraud, emfound, that the said articles of association were bezzlement, wilful misconduct, breach of trust drafted by an attorney-at-law, who, in present- for their own benefit, or the benefit of others, ing them to the first meeting stated and explained did knowingly violate the articles of association, that the articles provided for no penalty or lia- and disregard their oaths of office in making bility, if the directors violated them, it being loans beyond the 10 per cent. limit. the intention to apply for a charter, which It is worthy of remark as a peculiar feature of would fix their liability; that the articles were this case, that the bill contains no clear and directory and not mandatory. Many of the distinct charge against the defendants, of fraud, stockholders and directors testified (under ob- embezzlement, wilful misconduct, breach of jection), and the Masters so found, that it was the general understanding of the stockholders in adopting the articles that the eighth article was not to be understood as prohibiting a loan in excess of $5000, if security was provided; otherwise it would have been impossible to conduct such a banking business as was contemplated and entered into. No charter was ever obtained. "Upon a review of the whole case, it is clear The officers and directors of the bank acted upon that the directors who were mere mandatories, the above-mentioned understanding of the 8th serving without compensation, and bound to article from the outset until the close of the apply only ordinary skill and diligence, filled the business. Loans were frequently made to indi- measure of this requirement, in the discharge of viduals, on security, in excess of $5000, and in their duties in connection with this trust. Whatthe majority of such cases no loss ensued. The ever was done by them, whether rightly or bank continued to do a profitable business until wrongly, prudently or otherwise, was done for (to quote from the Master's report)" the 11th the common benefit of all the stockholders, and June, 1877, when the decision of our Supreme with the view of making money for the company. Court in Woods v. North (3 Norris, 407) was If they were mistaken in the character and amount announced, relieving the indorser of a note con- of the loans made to individuals, and in their

trust for their own benefit, and not for the benefit of the stockholders; or of gross inattention and negligence, by which said fraud or misconduct has been perpetrated by their agents, officers, or co-directors, so as to bring their liability within the ruling in Spering's Appeal (21 P. F. Smith, 11).

ability to pay, or in relying too implicitly in the | between themselves, to explain, alter, and modify care, prudence and discretion of William M. their agreement by parol. Marshall, their cashier, or M. Williams, their attorney, or any other of their officers in conducting and managing the affairs of the bank, they were errors of judgment, honestly made, and with the best intentions on the part of the managing body; and were fairly within the scope of the powers and discretion confided to them.

Certiorari to the Quarter Sessions of Fayette County.

Petition, by sundry inhabitants of Bellevernon Borough and vicinity, as follows:

The petition of the subscribers respectfully showeth : That they labor under great inconvenience for the want of a public road or highway to lead from a point in

It was entirely competent for the partners, as Grant Street, in the Borough of Bellevernon, county